The Juror and the Convict

June 28, 2005

In the days after the trial ended, Lynne Harriton could not stop thinking about the man she’d convicted of murder. Her cheeks had been wet with tears when she announced the verdict in court on June 18, 2002. Afterward, she had returned to her job teaching English at a public high school, but in her mind the trial would not end. She kept replaying scenes from it, and worrying about the fate of the young man she had found guilty.

One year earlier, the crime had been front-page news, dubbed the “Carnegie Deli Massacre” by the tabloids. On the evening of May 10, 2001, two men had visited Jennifer Stahl, a former actress who sold marijuana from her apartment above the Carnegie Deli. By the time they walked out, Jennifer had a bullet hole in her forehead. Four friends of hers lay on the living room carpet, facedown, wrists and ankles bound with duct tape, each shot once in the back of the head. Two survived; Jennifer and two others did not.

The police named Andre Smith, 31, and Sean Salley, 29, as suspects in this triple homicide. Andre walked into the Midtown North station house 10 days later and denied any involvement. After cops grilled him for hours, he changed his story, admitting he’d gone to Jennifer’s apartment to steal marijuana. He insisted that Sean Salley—whom he’d met a few days earlier—had shot all five people. It took cops nine weeks to track down Sean, who was hiding out in a homeless shelter in Miami.

Andre and Sean went on trial together with two juries; Lynne was the foreman of Andre’s jury. She believed Andre had told the truth about not firing the gun. Indeed, even the prosecutor had stated during his closing statement that Sean had shot all five people. But Andre’s jurors were not supposed to determine whether he’d shot anyone—only if he’d committed (or tried to commit) a robbery that caused a death. If the answer was yes, then he was guilty of murder. That is how the law works.

Lynne had no doubt that Andre was technically guilty; her concern was with the punishment he was about to receive. She thought he deserved 25 or 30 years in prison—a substantial amount of time, but fewer years than Sean. Reading the news coverage after the verdict, she began to worry that Andre would have to spend the rest of his life behind bars.

She sat down in front of her computer.

Dear Judge Berkman,

I write to beg you to show leniency in your sentencing of Mr. Smith. . . . Mr. Smith was not the gunman. He is not himself a killer. Information revealed by the state during the trial indicates that he was shocked and horrified by the actions of the gunman, that he felt remorse, sadness and shame. Please, Judge Berkman, you consistently showed such kindness and warmth to us. Could you afford this person some years of light at the end of his life?

Lynne sent the letter to the judge, the prosecutors, Andre’s lawyers, and Andre. Then she went to Austria to take summer courses.

On July 29, 2002, Judge Berkman sentenced both Andre and Sean to the same amount of prison time: 120 years to life. This included 25 to life for each murder, plus additional years for robbery and gun possession. The judge gave them the maximum punishment by stipulating that the sentences run one after another rather than concurrently.

Lynne was still in Austria when she opened an e-mail from one of Andre’s lawyers and learned about his sentence. Immediately her stomach began to hurt and her hands felt clammy. The next day she found herself leaning over the toilet bowl, her body racked by dry heaves.

Soon a sense of rage started to take over—rage at the judge and the prosecutors. “There’s a difference between pulling a trigger five times and not pulling a trigger even once,” she says. “I had the feeling that I had participated in something that was wrong. Can you imagine walking out of there after five weeks and feeling like there’s a stain on your soul? I felt like, how could I rectify this? How was I going to help?”

After she got home in mid August, she received an envelope from one of Andre’s lawyers, with a letter from Andre, who was still at the Queens House of Detention. At the time, Lynne had no way of knowing what sort of role the man she had convicted of murder would come to play in her life—and what sort of role she would play in his. Back then, three years ago, she never could have imagined that someday she would become Andre Smith’s closest friend.

Andre’s two lawyers, both from Legal Aid, had employed a mistaken-identity defense during the trial, claiming the police had arrested the wrong guy. It was a tough argument to make since the prosecutors had a signed confession from Andre, his fingerprint on a piece of duct tape, a surveillance video, and eyewitness testimony from the two surviving victims.

Despite his conviction, Andre insisted in his first letter to Lynne that he was an “innocent man.” He complained that even if the judge had given him just 25 years, he’d still be stuck behind bars for the rest of his life. Lynne disagreed.

Dear Mr. Smith—or may I call you Andre?

I’ve worked with many troubled and/or disadvantaged young people and I always saw you as someone who could have passed through my classroom a few years ago—and as someone I would have tried to “reach” . . .

I don’t see you as completely innocent in this situation, but I don’t see you as a murderer either. It was easy to see that it was you on the video. You have to remember that I sat there and looked at you all day long 3 days a week for 5 weeks. I don’t think I’ve ever looked at anyone that much in my life. I was familiar with the indents in your forehead, the size of your ears, the width of your neck, the slope of your shoulders, the way you move. There’s more. The shape of your hairline, the far-apartness of your eyes. . . . I knew it was you. But I also knew you weren’t the killer.

You said in your letter that even a concurrent sentence would have put you in jail for 25 years. It is true, it would have. And I think if I was 31, that 25 years would seem the same as 120. But I’m not 31—and I can see perhaps more clearly than you what a difference that would have made. I’m 50—I’ll be 51 in November. And in no way do I feel that my life is over. Even in 5 years when I’m 56, I will still have 25-30 years ahead of me full of plans and ideas and passions and travel and sunshine and laziness and mud between my toes . . . (or sand, or grass . . . )

So, this is what I was hoping for you. I know it doesn’t seem like much, compared to what no jail would be, but I don’t know what to say about that. I wish my contribution would have helped you get those 25 years. I think you deserved at least that. I feel that I was used by the political system. I wish there was something I had done differently that would have changed the outcome. Logically I know this was not my fault, but I still feel very sad. And I want to offer you some friendship.

I’d like to know about your childhood, your children, your life & your previous dreams for it, about where you are now, what it’s like—your thoughts about anything, I guess. . . . I want to encourage you to write. Reach for the right words—try to describe your world. I don’t know why, but writing helps. It always helps. I will send a dictionary and a thesaurus if you would like. . . . Again, I look forward to hearing from you. I really do.

A few weeks later, Lynne received a letter from Downstate Correctional Facility, the first stop for men entering the New York State prison system.

Care to take a journey into my world— August 27, ’02. The day I depart from NYC to prison, 4:30 a.m. I was awoken by the sounds of keys singing and an officer opening up my cell bars telling me, “Pack it up, you’re headed upstate.” 5 o’clock. A captain escorts me downstairs. I go into a holding pen where I am fed breakfast, four slices of bread, one milk and oatmeal cereal. 5:30 a.m. Finger printed, mugshot, handcuffed, and put on a city correction shuttle bus to Rikers Island to be put on another bus. This time it so happens to be [with] a tribe of individuals cuffed and shackled going to the same location as me, the lost world.

While traveling through the interstate, I gazed out the window, soaking up the magnificent view of cars passing by, trees looking so beautiful and calm grass freshly green, animals attending to everyday nature activities. A sight I will no longer [be] able to enjoy unless I view it from a television screen. . . .

One hour has lapsed, the gate finally starts to open, the bus pulls into its loading dock, the sound of the engine shuts off and the gates slowly shut. One by one the cuffs and shackles are removed and we are told to step into a huge holding cell occupied with a toilet and sink. Numerous officers approach. “Turn around, place your hands on the walls, and spread your legs out open.” All your clothing has to go either in the trash or [be] sent home, however, you are allowed to keep all legal work and religious articles.

A doctor/nurse comes and asks you questions about your medical history. After questioning, you step back into the holding cell. You are fed, given a shower, haircut, and shave, issued state greens with boots and tennis shoes, assigned a housing unit along with a cell, locked in until the next day.

7:00 AM the next day begins with a stand-up count, fully dressed standing by your cell, served breakfast in the mess hall, off for more testing, medical, TB, chest X-rays, eye examination, shots, etc. Back to your housing area, locked in til chow, the same thing continues, more testing education this time, talk to a counselor who tells you your classification level, back to your cell.

There you have it—some insight on what happens when you enter prison reception. . . .

Lynne:You write beautifully. Your descriptions are completely involving—I can see through your pen. I have been teaching for 10 years; few of my students have that sense of writing, that ability to enable me to see—and to hear their voices as I could hear yours. Your descriptions are really vivid—you move from observations to thoughts and back to observations again really skillfully. You use sound descriptions as well as visual. . . . You can’t teach this! I hope you are writing every day.

Lynne Harriton, at her apartment in midtown Manhattan

photo: Shaune McDowell

Lynne had never been one to believe in fate, but there were so many coincidences with this case that she imagined they were signs telling her to stay involved. The crime had occurred in her neighborhood, just two blocks from her home; she’d been the very first person picked for Andre’s jury; after the trial, she’d discovered that the mother of one of her students was a close friend of Jennifer Stahl; and she had learned that one of her neighbors used to buy pot from Jennifer.

Throughout the fall and into the winter, letters traveled back and forth between Lynne and Andre.

Lynne:Let me tell you a little bit about myself. Oddly, I live on West 55th Street between 8th and 9th Avenues, not far from the Carnegie Deli. I have lived here for 26 years. I have a 2-bedroom apartment. . . . I’m an identical twin and my sister is an assistant principal at a high school in Brooklyn. We grew up in Pennsylvania—near Delaware Water Gap, and our parents still live out there. I am very lucky that they are still alive and still together.

Andre:My childhood was basically normal besides both my parents were not actually there. My brother and I were raised by our grandmother. She was a wonderful lady, who didn’t tolerate no mess from us or others. She was strict as hell. . . . I don’t care if you were someone else’s child, she’ll chastise you as well, so children in our neighborhood who knew Ms. Freida did not give her back talk.

Fifty years before Andre was incarcerated for the Carnegie Deli murders, his own mother was born in a New Jersey prison. That was in 1952, when his grandmother Freida was 17 and serving time for “incorrigibility.” Two decades later, Freida took custody of Andre and his brother Tyrone, raising them in an apartment in Newark. She never talked about her time in prison, but she always preached the importance of staying out of trouble. She attended classes at Essex County College and paid the rent by doing maintenance work at the local courthouse.

Andre occasionally saw his mother, but he didn’t call her Mom or Ma. Instead, he called her Sharon or sometimes just Sha. She seemed more like a sister than a mother. He never saw her shoot heroin, but he knew she was an addict. He also knew she supported herself by shoplifting; her favorite loot was $100 dresses from department stores in Manhattan. “Why are you doing that?” he asked one day, when they went to Macy’s and she started shoving clothes into bags.

His childhood memories include spending time with her in a jail visiting room on Rikers Island and tagging along when she went to her methadone clinic in the Village. When Andre was a teenager, she began showing the symptoms of AIDS; he started bringing her to emergency rooms whenever her condition worsened. By the end of 1989, Freida was sick, too. She’d suffered a stroke and a heart attack. Andre spent his days shuttling between two hospitals—one in Newark, the other in Union City—to visit his mother and grandmother.

His mother died at the end of 1989 at age 37. Six weeks later, his grandmother died too. She was 55. For both of them, Andre helped make the funeral arrangements and pick out the caskets. At the time, he was 19.

By then Andre already had a rap sheet. He’d been selling marijuana and cocaine for a few years, even though he knew his grandmother did not approve. At one point, she’d even refused to give him and his brother Christmas presents. “Since y’all are going to sell that poison, buy your own gifts,” she’d said.

In 1990, five months after Freida’s death, Andre was arrested and charged with cocaine possession. While this case was pending, he got arrested again; this time police said he had 140 vials of crack. He pleaded guilty in both cases and spent a total of 20 months in a New Jersey prison. He was released on parole in the spring of 1993.

Two months later, he stuck up a coke dealer in Washington Heights with a .38-caliber semiautomatic pistol. Nobody was injured. Andre spent three years in a New York prison, then four more years in a New Jersey prison for violating his parole.

At one point, he and his brother were in the same medium-security facility in Camden. (Tyrone was serving time for manslaughter.) According to Andre, the two shared a prison cell for seven or eight months.

Lynne:You write with such sensitivity about your grandmother, this woman who worked so hard to raise you right. And she produced a young man who respects her values and appreciates her efforts totally (you). Yet something went wrong. Can you put your finger on it—when, where, what happened? What was going on that you dropped out of school in the eleventh grade? Something must have been appealing to you, tugging you toward another direction.

Andre:The fast money I made went to my head. Stopped listening to my grandmother. Eventually I went to live with my aunt, went back to school, but Newark kept calling me back (the block). Needed money to keep up with the others. We wanted to be like the other kids in our neighborhood—sneakers, jeans, leather hip-hop coats.

Andre left prison in the beginning of 2000, and this time he decided to go straight. By now he was 28 and had four children—ages 13, 12, 12, and eight—with three different women. He moved in with his girlfriend Keasha and their eight-year-old son in Irvington, New Jersey. He’d earned his high school equivalency diploma in prison, and now he enrolled in a technical school, where he took classes in accounting, business math, and spreadsheet management.

Over the next year, he held several low-wage jobs: security guard in a Newark homeless shelter, dishwasher in a Maplewood retirement home, forklift operator in a warehouse. To make extra money, he worked weekends selling hot dogs from a cart he parked in front of a barbershop. He also tried to be a good father and spent a lot of time with his children, taking them roller-skating and to the movies.

Despite his good intentions, Andre continued to find trouble. He hung out with friends he’d met in prison. He got arrested twice for drug possession. He got shot in the leg. Then, on January 1, 2001, he slipped on an icy sidewalk and broke his femur. He had to have a rod inserted in his leg and could no longer push his hot dog cart around. Making a living suddenly became much more difficult.

In February 2001, Keasha gave birth to his fifth child, DéAndre. Andre continued to go to school and was on track to graduate in June. In May, he applied for a job with a hazmat cleanup crew. He doubted he would get the job because he heard another applicant had more experience. While he was waiting to find out if he’d been hired, he agreed to participate in one more robbery.

His decision would ultimately end three people’s lives and destroy many more, including his own.